Hill v. Johnson, No. 3:09cv659, 2010 WL 5476755 (E.D. Va. Dec. 30, 2010):
[August 18, 2011 Update: For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].
To the extent that Hill's petition may be construed to assert that his claim of actual innocence invokes equitable tolling, this argument fails. “Neither the Supreme Court nor the Fourth Circuit has decided whether a claim of actual innocence warrants tolling of the statute of limitations. The majority of Circuit Courts that have addressed this issue have rejected actual innocence as a basis for equitable tolling. See, e.g., Lee v. Lampert, 610 F.3d 1125, 1133 (9th Cir.2010); Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) (“ ‘[A]ctual innocence’ is unrelated to the statutory timeliness rules.”); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (“[T]he statutory one-year limit on filing initial habeas petitions is not mitigated by any statutory exception for actual innocence even though Congress clearly knew how to provide such an escape hatch.”); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002). However, the United States Court of Appeals for the Sixth Circuit has acknowledged the possibility that a showing of actual innocence could provide a basis for equitable tolling. Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005).